Standing, Capacity, and Necessary Parties in Trust Litigation
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Spring 2014 Melanie Leslie – Trusts and Estates – Attack Outline 1
Spring 2014 Melanie Leslie – Trusts and Estates – Attack Outline Order of Operations (Will) • Problems with the will itself o Facts showing improper execution (signature, witnesses, statements, affidavits, etc.), other will challenges (Question call here is whether will should be admitted to probate) . Look out for disinherited people who have standing under the intestacy statute!! . Consider mechanisms to avoid will challenges (no contest, etc.) o Will challenges (AFTER you deal with problems in execution) . Capacity/undue influence/fraud o Attempts to reference external/unexecuted documents . Incorporation by reference . Facts of independent significance • Spot: Property/devise identified by a generic name – “all real property,” “all my stocks,” etc. • Problems with specific devises in the will o Ademption (no longer in estate) . Spot: Words of survivorship . Identity theory vs. UPC o Abatement (estate has insufficient assets) . Residuary general specific . Spot: Language opting out of the common law rule o Lapse . First! Is the devisee protected by the anti-lapse statute!?! . Opted out? Spot: Words of survivorship, etc. UPC vs. CL . If devise lapses (or doesn’t), careful about who it goes to • If saved, only one state goes to people in will of devisee, all others go to descendants • Careful if it is a class gift! Does not go to residuary unless whole class lapses • Other issues o Revocation – Express or implied? o Taxes – CL is pro rata, look for opt out, especially for big ticket things o Executor – Careful! Look out for undue -
Chapter 58A: Kansas Uniform Trust Code Article 1: General Provisions and Definitions Statutes
KANSAS STATUTES (source: www.kansasstatutes.lesterama.org) Chapter 58a: Kansas Uniform Trust Code Article 1: General Provisions And Definitions Statutes: • 58a101: Short title. • 58a102: Scope. • 58a103: Definitions. • 58a104: Knowledge. • 58a105: Default and mandatory rules. • 58a106: Common law of trusts; principles of equity. • 58a107: Governing law. • 58a108: Principal place of administration. • 58a109: Methods and waiver of notice. • 58a110: Others treated as qualified beneficiaries. • 58a111: Nonjudicial settlement agreements. • 58a112: Rules of construction. • 58a101: Short title. This act may be cited as the Kansas uniform trust code. History: L. 2002, ch. 133, § 1; Jan. 1, 2003. • 58a102: Scope. This code applies to express trusts, charitable or noncharitable, and trusts created pursuant to a statute, judgment, or decree that requires the trust to be administered in the manner of an express trust. History: L. 2002, ch. 133, § 2; Jan. 1, 2003. • 58a103: Definitions. As used in this code: (1) "Action," with respect to an act of a trustee, includes a failure to act. (2) "Beneficiary" means a person that: (A) Has a present or future beneficial interest in a trust, vested or contingent; or (B) in a capacity other than that of trustee, holds a power of appointment over trust property. (3) "Charitable trust" means a trust, or portion of a trust, created for a charitable purpose described in subsection (a) of K.S.A. 58a405, and amendments thereto. (4) "Conservator" means a person appointed by the court pursuant to K.S.A. 593001 et seq., and amendments thereto, to administer the estate of a minor or adult individual. -
Uniform Trust Code Final Act with Comments
UNIFORM TRUST CODE (Last Revised or Amended in 2010) Drafted by the NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS and by it APPROVED AND RECOMMENDED FOR ENACTMENT IN ALL THE STATES at its ANNUAL CONFERENCE MEETING IN ITS ONE-HUNDRED-AND-NINTH YEAR ST. AUGUSTINE, FLORIDA JULY 28 – AUGUST 4, 2000 WITH PREFATORY NOTE AND COMMENTS Copyright © 2000, 2010 By NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS April 10, 2020 1 ABOUT NCCUSL The National Conference of Commissioners on Uniform State Laws (NCCUSL), now in its 114th year, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law. Conference members must be lawyers, qualified to practice law. They are practicing lawyers, judges, legislators and legislative staff and law professors, who have been appointed by state governments as well as the District of Columbia, Puerto Rico and the U.S. Virgin Islands to research, draft and promote enactment of uniform state laws in areas of state law where uniformity is desirable and practical. $ NCCUSL strengthens the federal system by providing rules and procedures that are consistent from state to state but that also reflect the diverse experience of the states. $ NCCUSL statutes are representative of state experience, because the organization is made up of representatives from each state, appointed by state government. $ NCCUSL keeps state law up-to-date by addressing important and timely legal issues. $ NCCUSL’s efforts reduce the need for individuals and businesses to deal with different laws as they move and do business in different states. -
Lecture Notes Chapter 13 I
LECTURE NOTES CHAPTER 13 I. Scope of the Chapter A. Various kinds of trusts, including living trusts, are identified and discussed. B. The classification of trusts and an examination of a private express trust lead to a detailed discussion of the living trust. C. The steps necessary for drafting trusts, including the accumulation of data through appropriate checklists, are outlined. II. Classification of Trusts A. All trusts are either express or implied. 1. An express trust is created or declared in explicit terms for specific purposes and is represented by a written document or an oral declaration. a. Express trusts fall into the following subcategories. (1) Private or public (charitable) trusts (2) Active or passive trusts (3) Inter vivos or living trusts b. The most common types of express trusts are testamentary and living trusts. 2. Implied trusts are created not by the settlor’s express terms but by the presumed intent of the settlor or by a decree of the court. B. Express Trusts—Private versus Public (Charitable) 1. A private trust is created expressly either orally or in writing between a settlor and a trustee(s) who holds legal title to property for the financial benefit of a beneficiary. a. It is one of the most common types of trusts. b. The essential elements of an express private trust are as follows. (1) The settlor must intend to create a private trust. (2) A trustee must be named to administer the trust. (3) A beneficiary must be named to enforce the trust. (4) The settlor must transfer sufficiently identified property to the trust. -
The Rule Against Perpetuities: a Survey of State (And D.C.) Law
THE RULE AGAINST PERPETUITIES: A SURVEY OF STATE (AND D.C.) LAW At common law, the rule against perpetuities provided that: No [nonvested property] interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest. Gray, The Rule Against Perpetuities § 201 (4th ed. 1942). Under the common law rule, the interest was invalid unless it was certain on the date the interest was created that it would vest within 21 years after the death of the last designated life in being at that time (the “common law period”). The common law rule ignored any events that occurred after the interest was created, and focused only on what was certain to occur or not to occur when the interest was created. The common law rule remains intact in only three states, however – Alabama, New York, and Texas. Three more states – Iowa, Mississippi and Oklahoma – have the common law rule, with the “wait-and-see” modification that determines whether an interest was valid based on whether it actually vested within the common law period, rather than whether it had to do so in all events. The beginning of the movement away from the common law rule began in 1979, when the Restatement (Second) of Property suggested that this approach was unreasonable, because it ignored events that, in some cases, had already occurred before the court or the parties had to determine the validity of the interests created. Restatement The Rule Against Perpetuities, 50-State Survey, Page 1 DISCLAIMER ON USE: The reader is cautioned to confirm the information provided in this Survey by independent research and analysis to ensure that it is accurate, complete, and current. -
Taxationâ•Flapportionment of Estate Taxes Among Individual And
Buffalo Law Review Volume 12 Number 1 Article 53 10-1-1962 Taxation—Apportionment of Estate Taxes Among Individual And Charitable Legatees Walter W. Miller Jr. Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Part of the Taxation-Federal Estate and Gift Commons Recommended Citation Walter W. Miller Jr., Taxation—Apportionment of Estate Taxes Among Individual And Charitable Legatees, 12 Buff. L. Rev. 196 (1962). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol12/iss1/53 This The Court of Appeals Term is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. BUFFALO LAW REVIEW since it has modified the common law rule. The minority view would call for an extension of the scope of the notice which under a restrictive interpretation would appear to be unwarranted. The protection afforded by lis pendens would not aid the plaintiff in this matter. As hereinbefore mentioned, whether the lis pendens is continued or not will have no bearing on the effectiveness of the court's decision concerning the nuisance, and plaintiff's rights acquired by a favorable judgment can not be lost by a transfer of defendant's interests. Conversely, the notice to a purchaser of the encroachment is obvious without the aid of a pendency in action. The Court's construction of the word "use" is reasonable. -
ELTC Law Group
! Protect What’s Yours: 8 Useful Estate Planning Vehicles to Help You Preserve Your Wealth for Your Loved Ones When starting with your estate planning, you will definitely want to get help from a qualified elder law attorney. Prior to this, however, it can be helpful to learn about the different estate planning tools and vehicles that may be right for you. Read on to get a nice overview of eight of the most useful, and effective, estate planning vehicles available today. While they may not all be right for you, it is always helpful to know your options. Last Will & Testament For most people, a Last Will and Testament is the right place to start with estate planning. In fact, a Will is something people should have in place pretty much from the moment they become adults, or at least once they get married or have children. Over the years, Wills can be updated and changed to reflect your position in life. For people with modest estates, a Will may actually be one of the only estate planning documents that they need. Once an estate gets sufficiently large, however, it will almost always be smart to add additional options to your portfolio. Knowing when a Will is enough, and when you will need something more, is an important conversation to have with your estate planning advisor or attorney. Living Trust Once someone ‘outgrows’ a Will, they will typically start using a Living Trust. A trust is a legal contract that you put your assets into. The trust then holds the title, and retains control, of all of the assets within it. -
Rights and Responsibilities of Charitable Beneficiaries in Death-Related Administration of Estates and Trusts
Rights and Responsibilities of Charitable Beneficiaries in Death-Related Administration of Estates and Trusts Presented By: Fredrick B. Weber Sr. Vice President – Estate Settlement Services The Northern Trust Company 50 S. LaSalle Street, B6 Chicago, IL 60603 312/444-4702 [email protected] Based on Materials Originally Written By: Stacy Singer Fredrick B. Weber Sr. Vice President - Fiduciary Practice Leader Sr. Vice President – Estate Settlement Services Northern Trust Company Northern Trust Company 50 S. LaSalle Street B-4 50 S. LaSalle Street, B-6 Chicago, IL 60603 Chicago, IL 60603 312/444-3826 312/444-4702 [email protected] [email protected] These materials are intended to provide information about the subject matter covered and are designed to serve as a point of reference for conference participants. These materials are distributed and presented with the understanding that the authors and the presenter are not rendering any legal, accounting, financial, or other professional services or advice. Attorneys or other professionals using these materials or any orally conveyed information in dealing with a specific client’s or their own legal or financial matters should research original and fully current sources of authority. 1 I. Introduction In the process of death-related administration of estates and trusts, why is it that transparency often seems so elusive even to those who are entitled to some sort of disclosure by the personal representative and/or the trustee? This is particularly intriguing since the Uniform Probate Code, which has been -
Probate September 2005.Indd
Probate and Trust Law Section Newsletter No. 112 Published by the Section on Probate and Trust Law of The Philadelphia Bar Association August 2005 Have a restful and rein- vigorating summer – we’ll see you Report of the Chair in the fall! By JULIA B. FISHER The Probate Section – as usual through our hard-working and amazingly productive committees – has had a number of opportunities so far this year to respond to “late breaking” developments that impact all of its members. In late December of 2004, the Treasury published sweeping revisions to the Circular 230 regulations that establish standards of practice for tax pro- Inside this fessionals. The changes, for the most part, became effective on June 20, 2005. The Education Committee worked with the Tax Section on very short notice to Issue........ prepare an outstanding April 19 presentation on “Giving Tax Advice after June 20: Can You Comply with Circular 230?” Comment Letter to the IRS.....................2 On April 18, 2005 the IRS released Revenue Procedure 2005-24 which imposes new rules and requirements for charitable remainder trusts created after June 28, 2005. The Legislative Committee leaped into action and prepared a Section Events comment letter to the Service – you can find a copy of their work in this issue Calendar.......................3 of the newsletter. In addition, the Committee will consider a legislative solution to the issues the Revenue Procedure creates for Pennsylvania practitioners. The Family Office Phenomenon................4 Another project in which members of the Section are participating is the recently launched Philadelphia Register of Wills’ website and computerization project. -
Senate Substitute
2021 SESSION SENATE SUBSTITUTE 21103695D 1 SENATE BILL NO. 1435 2 AMENDMENT IN THE NATURE OF A SUBSTITUTE 3 (Proposed by the Senate Committee on the Judiciary 4 on February 3, 2021) 5 (Patron Prior to Substitute±±Senator Hanger) 6 A BILL to amend and reenact §§ 32.1-291.7, 54.1-2982, 54.1-2983, 54.1-2984, 59.1-481, 64.2-100, 7 64.2-403, 64.2-404, 64.2-407, 64.2-450, and 64.2-701 of the Code of Virginia and to amend the 8 Code of Virginia by adding in Chapter 4 of Title 64.2 an article numbered 7, consisting of sections 9 numbered 64.2-459 through 64.2-468, relating to electronic execution of estate planning documents; 10 Uniform Electronic Wills Act. 11 Be it enacted by the General Assembly of Virginia: 12 1. That §§ 32.1-291.7, 54.1-2982, 54.1-2983, 54.1-2984, 59.1-481, 64.2-100, 64.2-403, 64.2-404, 13 64.2-407, 64.2-450, and 64.2-701 of the Code of Virginia are amended and reenacted and that the 14 Code of Virginia is amended by adding in Chapter 4 of Title 64.2 an article numbered 7, SENATE 15 consisting of sections numbered 64.2-459 through 64.2-468, as follows: 16 § 32.1-291.7. Refusal to make anatomical gift; effect of refusal. 17 A. An individual may refuse to make an anatomical gift of the individual©s body or part by: 18 1. -
Choice of Entity Considerations for Charitable Organizations
Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 3-2012 Choice of Entity Considerations for Charitable Organizations Terri Lynn Helge Texas A&M University School of Law, [email protected] Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar Part of the Business Organizations Law Commons, and the Nonprofit Organizations Law Commons Recommended Citation Terri L. Helge, Choice of Entity Considerations for Charitable Organizations, 39 Tex. Tax Law 17 [1] (2012). Available at: https://scholarship.law.tamu.edu/facscholar/629 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact [email protected]. S pr ing 2012 V ol. 39, No. 3 w ww.texastaxsection.org 2 Choice of Entity Considerations for Charitable Organizations By: Terri Lynn Helge1 I. Introduction. This article discusses choice of entity issues related to the formation, operation and governance of nonprofit organizations, highlighting the distinctions between charitable organizations formed as charitable trusts and charitable organizations formed as nonprofit corporations. In determining the legal structure for a new nonprofit entity, considerations that need to be taken into account include: (1) ease/speed of formation; (2) limitation of liability for members and directors; (3) financial resources; (4) type and scale of activities to be conducted; (5) governance requirements; (6) capacity to own property and contract; (6) capacity to sue and be sued; (7) liabilities to third parties; (8) permanence of the organization; and (9) ease of dissolution. -
Community Foundation As Trustee of a Charitable Trust–Issues to Consider
Community Foundation as Trustee of a Charitable Trust–Issues to Consider By Michael J. Cooney, Esq. Nixon Peabody LLP Increasingly, donors look to community foundations to provide a complete range of tools for philanthropy. For any community foundation with an active planned giving program, the question will eventually arise as to whether and under what conditions the entity will serve as a trustee of a charitable remainder trust of which it is a beneficiary. The purpose of this article is to set forth some of the items that the community foundation board and administration should consider. Basics on Charitable Remainder Trusts A charitable remainder trust (or “CRT”) is a tax-exempt trust that provides for the payment of a defined amount to designated beneficiaries for a term of years or their lives. After this period expires, the trust principal is transferred to a designated charitable remainderman. The CRT must be either a charitable remainder annuity trust or a charitable remainder unitrust. It cannot combine the features of both. A charitable remainder annuity trust provides for the annual payment of a fixed dollar amount (an annuity) to the noncharitable beneficiary. The annuity amount, once established, cannot change and must be at least 5 percent of the initial net fair market value of the property placed in the trust. Annual contributions to an annuity trust after the initial funding are expressly prohibited. A charitable remainder unitrust provides for the annual payment of a fixed percentage, again not less than 5 percent of the annually determined net fair market value of the trust principal.